Despite being seriously ill, Bernardo Provenzano is still an active, “socially dangerous” Mafia boss who should stay under the strict 41b prison regime. Provenzano's poor health and very limited opportunities to communicate with the outside world, which led to suspension of his trial on charges relating to the so-called State-Mafia negotiations, are not incompatible with the rigid prison regime. For one thing, there are doubts over how real the Mafia boss's apparent mental incompetence actually is.

As a result, the Bologna supervising court denied the application by Provenzano's lawyer, Rosalba Di Gregorio, for revocation of the 41b regime. The order took into account the opinion in favour of revocation expressed by the three public prosecutor's offices at Palermo, Caltanissetta and Florence still investigating Mafia-inspired multiple murders. But the national anti-Mafia directorate (DNA) said no, in the light of the top-ranking role the prisoner still plays within Cosa Nostra. Magistrates in Bologna also adopted this view in a ruling that has the paradoxical effect of making the boss considered to be at the apex of the underworld organisation unfit to stand trial.

Yesterday's decision refers to an enduring “concrete danger of committing other crimes” that “cannot be regarded as ruled out by the illnesses” from which the Corleone Mafia boss is suffering. Nor does his “current cognitive deficit” suggest that the “subject's evident socially dangerous nature” has diminished. Doctors who examined Provenzano last year said he was “usually alert, sometimes carries out simple orders and responds to simple questions with meaningful words” even though “his speech is generally incomprehensible”. The psychiatrist reported that “an investigation of the content of his mind is not possible because the patient does not respond to questions”. The magistrates comment: “It is not known to what extent, or within what limits, the subject's failure to collaborate is deliberate”.

One episode reported by the prison administration is considered by the supervising court to be emblematic of a situation in which it is inadvisable to drop one's guard against the Mafia. During his wife's visit on 17 August, Provenzano “recognised [her] when prompted, to the point of showing emotion, and asked her 'A putìa come va?'” [“How's the shop?”], an expression that could easily be an allusion to unlawful activities”.

The inference is of course debatable and is likely to be contested by Provenzano's lawyer Di Gregorio in the struggle to extract her client from the 41b regime. For now, magistrates regard it as supporting their ruling: “Should the current regime be relaxed, the prisoner could easily send and receive messages from the outside world at grave risk to society, given his position at the apex of the leading Mafia association and the savagery he has already demonstrated; further considering that he was detained on 11 April 2006 after a long flight from justice, and that other members of Cosa Nostra are still fugitives from justice, including Matteo Messina Denaro who formerly had a very close relationship with Provenzano; and considering that he still runs the organisation's unlawful activities himself”.

Leaving aside the conclusions, it emerges from the ruling that there has been no worsening of the illness that has confined Provenzano to his bed since June in a special ward at Parma hospital (symptoms of Parkinson's disease and related disorders). In fact, there may even have been some improvement, despite the 41b-imposed restrictions on contact with the outside world. This enables the magistrate in charge of the prison service's general directorate for the treatment of inmates, Roberto Piscitello, to point out that “the judges have acknowledged that Provenzano is receiving the best possible care”.